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stock in any one of them. The bill is in On July 29, 1904, Walter T. Moore, by effect an attempt to control the action of virtue of the power reserved to him in the these corporations by control over an influen- policy, assigned the same to his wife Faustial owner of the stock. Justice requires that tina M. Moore, the plaintiff in this action. the corporation whose interests are involved The answer contained a general denia! should be made parties. The bill is of vital and set up in defense that Walter T. Moore interest to the other stockholders. Price v. died by his own hand, within one year Minot, 107 Mass. 49, 63.

from the date of the policy, and also set Bill dismissed, with costs.

up the following agreement contained in the application for the insurance, signed by

Walter T. Moore: “And I do further agree (192 Mass. 468)

that if within two years from the date of MOORE V. NORTHWESTERN MUT. LIFE

said policy I shall pass south of the Tropic INS. CO.

of Cancer, or

shall within one (Supreme Judicial Court of Massachusetts.

year from the date of said policy whether Middlesex. June 21, 1906.)

sane or insane die by my own hand, then 1. INSURANCE - REQUISITES OF CONTRACT

and in every such case any policy issued FORM. Rev. Laws, c. 118, 8 73, provides that every

on this application shall be null and void.life policy which contains a reference to the The plaintiff filed a replication to the new application, must have attached thereto, a cor- matter set up in the answer, denying that rect copy of the application, and that unless so

the application complied with Rev. Laws, attached the same shall not be considered a part of the policy, and that each application c. 118, $ 73, and did not form part of the for such policy shall have printed upon it in policy, and denied that Walter T. Moore bold-faced type, “Under the laws of Massachu

died by his own hand. setts, each applicant for a policy to be issued hereunder is entitled to be furnished with a

Later the plaintiff amended the replicacopy of this application attached to any policy tion, by adding thereto the following clause: issued thereon.' Held, that it was the intent "And the plaintiff further says that if the to inform an insured that he was entitled to a

defendant shall introduce evidence tending copy of the application, and when that is done the application froms a part of the contract,

to show that the death of Walter T. Moore although the words required to be printed are was self-inflicted or that the instrumentalomitted.

ity was operated by his hand, then the 2. PLEADING-REPLICATION - NECESSITY FOR

plaintiff says that the death was caused PLEADING IN REPLY-NEW MATTER IN ANSWER.

under such a combination of circumstances Though by Rev. Laws c. 173, § 31, plain

that it was not the result of the will and tiff may reply to new matter in the answer, the intention of the deceased, adapting the means statute expressly provides that new matter in

to the end and contemplating the physical avoidance of the action shall be considered denied without a replication.

nature and effects of the act; that it was [Ed. Note.-For cases in point, see vol. 39, the result of a blind and irresistible impulse Cent. Dig. Pleading, $$ 32112-325.]

over which the will of the deceased had 3. INSURANCE-FORFEITURE OF POLICY-SUI- no control and was not an act of volition, CIDE.

that he did not know or understand the A provision in a life policy rendering it void in case insured should die by his own hand,

nature and consequences of the act." "sane or insane” covered every case of suicide,

This amendment was demurred to and irrespective of the state of insured's mind.

the demurrer sustained. [Ed. Note.—For cases in point, see vol. 28, At the trial in the superior court there Cent. Dig. Insurance, 8 1159.]

was evidence tending to show that Mr. 4. SAME-ACTION ON POLICY-EVIDENCE-SUF

Moore was in financial difficulty in Lowell; FICIENCY.

that he left Lowell on November 22, 1904, In an action on a life policy, evidence held to show the suicide of insured.

the day on which the directors and some

of the creditors of the Lowell Coal ComExceptions from Superior Court, Middle

pany, of which Moore was manager and sex County; Wm. B. Stevens, Judge.

which was in financial difficulty, were to Action by one Moore against the North

have a meeting, went to his summer place western Mutual Life Insurance Company in Amherst, N. H., which he had closed Verdict for defendant, and plaintiff brings

for the season about a month before, but exceptions. Exceptions overruled.

which was then occupied by his man lookWm. H. Bent, for plaintiff. Horace G. ing after his live stock and other property Allen and Norman M. Nye, for defendant. there, arrived in the afternoon, talked with

his hired man about his troubles and the LATHROP, J. This is an action of con- possibility of having to sell his place, directtract on a policy of life insurance issued ed his man to go for his team to drive to Walter T. Moore on May 27, 1904, by him to the station, and then went into the a foreign corporation doing business here, house alone; that a short time thereafter, under an agent duly authorized, and the after waiting for him to come out, his man policy was delivered here. Both parties have went into the house, passed through the argued the case on the assumption that the dining room and kitchen into the woodshed. policy is a Massachusetts contract, and we where he found Mr. Moore lying on his so treat it.

back on the ground, dead; that there was

a rifle in an iron vise at one end of a work intention of the Legislature to inform the bench, and attached to the trigger was a insured that he was entitled to have a copy string which apparently had been passed of the application attached to his policy, through a hasp; that' Moore had been shot and that when this was done, the applica. through the body and the bullet was found tion formed a part of the contract, although imbedded on the opposite side of the shop the words required to be printed in boldat a spot toward which the rifle was point- faced type were omitted. If the Legislaed; that several hours thereafter his man ture had intended otherwise a very slight found lying upon Moore's overcoat in the change in the language of the section would dining room a piece of paper in Moore's have effected their intention. We are of handwriting but not signed by him, bidding opinion therefore that the application was good-bye to his mother and wife, and give rightly admitted, and that the rulings reing directions as to where to telephone. quested were rightly refused.

During the course of the trial the plain- 2. The remaining question is raised by tiff offered in evidence the original policy the demurrer to the amended replication. expressly excluding from his offer two pho- While by the Rev. Laws, c. 173, § 31, the tographic copies annexed thereto by attach- plaintiff may at any time before trial file ment, one of which was headed “Applica- a replication to the answer “clearly and tion to the Northwestern Mutual Life Insur- specifically stating any facts in reply to ance Company of Milwaukee, Wisconsin." new matter therein," yet as a general rule The other photographic copy was of the no further pleading is required after the declaration made to the medical examiner. answer. And the same section goes on to The defendant objected to the offer and provide: "Any new matter in avoidance of the court stated, "I will allow the entire the action which the answer contains shall contract put in, and I will rule later upon be considered to be denied by the plaintiff the effect of the application,” to which rul- without a replication, unless the court, uping the plaintiff excepted. Subsequently the on motion of the defendant, requires him to defendant offered the original application, reply thereto, and to state what part, if which the court admitted against the ob- any, he admits or denies." jection and exception

exception of the plaintiff. In our opinion the demurrer to the amendNeither the original application nor the copy ed replication was rightly sustained. Under had upon it in large, bold-faced type, nor the old form of policy which exempted from in any form of type or writing, the words: the terms of the contract cases of death "Under the laws of Massachusetts, each by suicide or by the hand of the assured, applicant for a policy of insurance to be

there was much conflict in the authorities, issued hereunder is entitled to be furnished and in Daniels v. N. Y., N. H. & H. R. R., with a copy of this application attached 183 Mass. 393, 397, 67 N. E. 424, 62 L. R. to any policy issued thereon."

A, 751, it was said by Chief Justice KnowlThe plaintiff made six requests for in- ton, that all agreed "that death self-caused structions, which were not given.

in an uncontrollable frenzy, without knowlThe jury returned a verdict for the de- edge or appreciation of the physical nature fendant; and to the question "Did the de- of the act, would not be a death by suicide ceased Walter T. Moore die intentionally by or by one's own hand.” It was further said his own hand ?" the jury answered “Yes." to be the doctrine of this court as stated

1. The first question which it is necessary in Dean V. American Ins. Co., 4 Allen, to consider is whether the application forms 96, and in Cooper V. Massachusetts Ins. part of the policy. This in various ways Co., 102 Mass. 227, 3 Am. Rep. 451, followis the subject of the six requests which were ing certain English cases, "that if death refused in the court below. The answer is the result of volition by one who has a to the question depends upon the construc- conscious purpose to end his life, and has tion to be given to the following words intelligence to adapt means to ends, it is which form a part of the Rev. Laws, c. 118, his own act within the meaning of such § 73: "Every policy which contains a refer

a contract, even though he is so far inence to the application of the insured, either sane as not to be morally responsible for as a part of the policy or as having any his conduct." It was also said that in some bearing thereon, must have attached there

other jurisdictions, including the Court of to a correct copy of the application, and Appeals of New York and the Supreme unless so attached the same shall not be

Court of the United States, it had been considered a part of the policy or received held that “if one, by reason of his insanity, in evidence. Each application for such poli- is unable to appreciate the nature and cy shall have printed upon it in large bold- qualities of his own act in its relations to faced type the following words: 'Under the the moral world, so that he is criminally laws of Massachusetts, each applicant for responsible for it, he does not commit suia policy of insurance to be issued hereunder cide or cause death by his own hand within is entitled to be furnished with a copy of the meaning of such a policy, if he delibthis application attached to any policy issued erately and willfully takes his own life," thereon.'"

To meet the difficulty caused by this conWe are of the opinion that it was the flict of decisions, the words sane or insane

were introduced into policies of insurance.

In Bigelow v. Berkshire Life Ins. Co., 93 U. S. 284, 23 L. Ed. 918, where the policy contained the clause avoiding the policy if the insured should die by suicide, sane or insane, the defendant set up in its answer that the insured died from the effects of a pistol wound inflicted upon his own person by his own hand, and that he intended by this means to destroy his life. The replication alleged that the insured, when he inflicted the pistol wound upon his person by his own hand, was of unsound mind, and wholly unconscious of his act. A demurrer to the replication was sustained. It was said by Mr. Justice Davis in delivering the opinion of the court, that the words "sane or insane" must receive a reasonable meaning, and further: "Nothing can be clearer than that the words 'sane or insane' were introduced for the purpose of excepting from the operation of the policy any intended self-destruction, whether the insured was of sound mind or in a state of insanity."

In De Gogorza v. Knickerbocker Life Ins. Co., 65 N. Y. 232, the words "sane or insane" were given their full meaning. The trial judge had instructed the jury that "if the act causing the death of the assured was the involuntary act of one incapable of exercising his will, then the company would be liable.” This was held to be erroneous. And in an elaborate opinion of the court it is said: "We prefer to place our decision upon the ground that the words of the proviso in the policy before us, by plain rules of interpretation, exempt the defendant from liability. That this language, in view of previous decisions, was inserted for such a purpose, cannot be doubted, and that it was agreed to by both the insured and the insurer is not questioned, and that it is a provision allowed by law, no one denies. We are to say from these words what the parties must have intended, and we cannot properly say that additional words having no meaning were inserted in the contract, and if they mean anything, it is just what the words commonly import, and that is, if death ensues from any physical movement of the hand or body of the assured proceeding from a partial or total eclipse of the mind, the insurer may gó free. We are not altogether unmindful of the force of the proposition that a man does not die by his own hand who has not sufficient mind to will his own death, and it is not perhaps, entirely easy to see in what precise words in our language the idea may be accurately and artistically expressed that a totally insane man may take his own life. But the question seems to involve more the refinement of language ---than the application of practical sense, and we are of the opinion that, in the common judgment of mankind, it will

be considered, that when a totally insane man blows his brains out with a pistol that he will be said to have died by his own hand within the meaning of a policy such as we have now under consideration." See, also, Travellers’ Ins. Co. v. McConkey, 127 U. S. 661, 8 Sup. Ct. 1360, 32 L. Ed. 308; Mutual Life Ins. Co. v. Kelly, 114 Fed. 268, 280, 52 C. C. A. 154; Clarke v. Equitable Assur. Soc., 118 Fed. 374, 55 C. C. A. 200; Pierce v. Travellers' Ins. Co., 34 Wis. 389; Billings v. Accident Ins. Co., 64 Vt. 78, 24 Atl. 656, 17 L. R. A. 89, 33 Am. St. Rep. 913; Scarth v. Security Ins. Co., 75 Iowa, 346, 39 N. W. 658; Mutual Reserve Fund Ass'n v. Payne (Tex. Civ. App.) 32 S. W. 1063, 1066; Adkins v. Columbia Ins. Co., 70 Mo. 27, 35 Am. Rep. 410; Chapman v. Republic Ins. Co., 6 Biss. 238, Fed. Cas. No. 2,606; Tritschler v. Keystone Benefit Ass'n, 180 Pa. 205, 36 Atl. 734; Sargeant v. National Ins. Co., 189 Pa. 341, 41 Atl. 351; Keefer v. Modern Woodmen, 203 Pa. 129, 52 Atl. 164; Sabin v. National Union, 90 Mich. 177, 51 N. W. 202; Scherar v. Prudential Ins. Co. (Neb.) 88 N. W. 687, 56 L. R. A. 611.

On reason and on the authorities, we can have no doubt that the old rule is done away with, and that the words "sane or insane" cover every case of suicide. Of course, a death by shooting may be accidental, but there is nothing in this case to show any accident. The evidence shows clearly a case of suicide, and it makes no difference what the state of mind of the person committing suicide was. The exceptions must therefore be overruled and the appeal dismissed.

So ordered.

(192 Mass. 481) KEELEY V. BOSTON ELEVATED RY. CO. (Supreme Judicial Court of Massachusetts.

Suffolk. June 21, 1906.) 1. MASTER AND SERVANT-INJURIES TO SERV

ANT-CONTRIBUTORY NEGLIGENCE-ASSUMPTION OF RISK-SUFFICIENCY OF EVIDENCE.

In an action for injuries to a servant, owing to his chisel having been brought in contact with a rail which was charged with electricity, evidence held sufficient to warrant a finding that plaintiff was in the exercise of due care and that he did not assume the risk. 2. SAME-NEGLIGENCE OF MASTER.

In an action for injuries to a servant, owing to his chisel having been brought into contact with a rail charged with electricity, evidence held sufficient to warrant a finding that some one representing defendant, and to whom the work had been intrusted, was negligent in permitting the power to be turned onto the rail. 3. SAME-NEGLIGENCE OF FOREMAN.

Where the foreman in charge of a gang of men working on the tracks of an electric railway had been informed by those in charge of the power that the power was turned off, and he instructed a servant to strike a rail with a chisel, and the servant was injured owing to the rail being charged with electricity, there was no negligence on the part of the foreman,

Exceptions from Superior - Court, Suffolk knew of no reason for the use of the power County; Francis A. Gaskill, Judge.

on that night, between those streets. Action by one Keeley against the Boston It was also in evidence that an appliance Elevated Railway Company. Verdict for termed a jumper was in common use at the plaintiff, and defendant brings exceptions. time of the accident, by which the power Exceptions overruled.

could have been cut off from the rail for any Walter B. Grant, for plaintiff. R. A.

assigned distance, even the length of a sinSears, James F. Sweeney, and Howard A.

gle rail, along the track, and the third rail A. Wilson, for defendant.

made harmless; that the appliance used for

this purpose could be handled by any one LATHROP, J. This is an action of tort of ordinary intelligence. The defendant for personal injuries sustained by the plain- kept for use, when working near the third tiff while in the employ of the defendant. rail during the day, rubber blankets to throw The declaration contained several counts, over the rail, and the electricians at times some at common law, and some under Rev. used test lamps to ascertain whether the Laws, 106, § 71. In the superior court the power was off or on. The workmen always jury returned a verdict for the plaintiff on had general instructions that the power was the second count, which alleged in substance off while they were at work at night, and that the plaintiff was set to work in a dan- each morning about 5 o'clock one of the gerous place, and while in the exercise of engineers would come around and state that due care, and without being warned of the the power was about to be turned on. danger, was injured. At the close of the evi- The defendant's engineer and foreman, dence the defendant asked the court to rule having control of the power, had full knowlthat upon all the evidence the plaintiff could edge that a large job was to be done that not recover. The judge refused so to rule night. Preparations were being made for and submitted the case to the jury, under some days before the work was done to reinstructions which we must assume to be place about 500 feet of track; new rails had correct. The only exception is to the refusal been brought to the place some days before to rule as requested.

placed between the tracks, and in order The jury were warranted from the evi- to reduce the amount of work to be done on dence in finding the following facts:

the night of relaying them the new rails The plaintiff employed by the defendant had been assembled, that is, joined together as a night laborer, was set at work as a mem- in sections of three. To insure the compleber of a large gang of workmen, to assist in tion of the work in one night, all three of the relaying about 500 feet of the defendant's gangs, ordinarily employed in different places north-bound track on its elevated structure on the structure and in the subway, were on Washington street, near Rollins street, consolidated and set to work together under Boston. While so employed, and when work- the foreman of the plaintiff's gang. ing near the third rail, so called, where he It would have been an easy matter and a was directed to work, he was seriously in- reasonable precaution to make the third rail jured by burns from a flash of electricity, dead along the whole distance which was caused by his chisel coming in contact with undergoing repairs. This was the unani

. this rail, which at the time the defendant mous opinion of the defendant's engineers permitted to be alive.

and managers. The defendant's chief operaThe electric power used to operate the tor received no orders that night to make the trains on the tracks ran through the third third rail dead. Telephones were in use berail, and was generally turned off the rail be- tween the various stations on the structure tween the morning hours of 1 o'clock and 5 and to the power houses. o'clock, at which time the trains did not run, On the night the plaintiff incurred his inand the night gangs were at work on the juries the men were instructed, when they tracks. The voltage used in the third rail went to work at 1 o'clock, that the third was from 500 to 600 volts, and the amper- rail was dead. The defendant's records show age was very large; the burning effect is that the third rails on both tracks were dead from the amperage; a person could be killed at 1:10 a. m. During the night instructions by a voltage of 500 volts. The electricity a .

came from Sullivan Square to the electrician in the third rail could be turned on or shut in charge of that section where the work was off, from either or both tracks, entirely at going on, to open the switches at Castle the will or control of the defendant, by street, which had the effect of putting the switches at the power stations at Sullivan power on to the third rail for about half the Square or Atlantic avenue, or locally from length of the job. Some of the men were either track by switches placed from 400 to told in a general way that a portion of the 500 feet apart. The turning of the switches rail was alive. The plaintiff was not so at Rollins street and at Castle street would informed. The evidence was conflicting as have rendered the rail dead at the point of to whether the foreman, Hellen, was so inthe accident, as it also could have been made formed. The electrician placed a red lantern dead from the power station. These local at the point of the dividing line between the switches were under the control of the de- live and dead rail, but the red lantern would fendant's engineer, who testified that he indicate nothing to any one as to which side of the lantern the rail was alive and dan- Mfg. Co., 144 Mass. 198, 205, 11 N. E. 77, gerous. The plaintiff did not see the lantern 59 Am. Rep. 68; Neveu v. Sears, 155 Mass. which, being at Rollins street, must have 303, 29 N. E. 472; O'Driscoll v. Faxon, 156 been about 250 feet from the place of the ac- Mass. 527, 31 N. E. 685; Coan v. Marlcident.

borough, 164 Mass. 206, 41 N. E. 238; BurThe cause of turning on the power at gess v. Davis Sulphur Ore Co., 165 Mass. Castle street was to let a work train go 71, 42 N. E. 501; Dean v. Smith, 169 Mass. over the cross-over at Castle street to pick 569, 48 N. E. 619.” up some old rails on the south-bound track This rule applies to corporations as well at Pelham street and Northampton street. as to individuals. Rogers v. Ludlow Mfg. It was not necessary that the power should Co., 144 Mass. 198, 201, et seq., 11 N. E. 77, have been turned on there for that purpose 59 Am. Rep. 08; Toy v. United States Carbecause, by using the south-bound track tridge Co. 159 Mass. 313, 34 N. E. 461; through the subway, no occasion existed for

Burgess v. Davis Sulphur Ore Co. 165 Mass. any power to be applied to the third rail of

71, 42 N. E. 501. the north-bound track. The chief operator While there was conflicting evidence on at the power station testified that it would the question whether the foreman of the have been an easy matter to keep the rails plaintiff's gang had been informed that the dead, and that he received no orders to make power had been turned on, the jury may have them dead on that night.

found that he had not been so informed. If At the time the plaintiff was injured he so, and he supposed that the rail was dead, was assisting to remove a rail saw from one the order to the plaintiff was not a negligent of the running rails within a few inches of one; and the negligence might well be found the third rail, and in the performance of his to be that of some one representing the comwork was directed by his foreman to strike pany, to whom the defendant had intrusted a blow with a chisel (a long-bladed hammer) the work, in allowing the power to be turnhanded to him by the foreman for the pur- ed on to the third rail of the north-bound pose, the use of which necessitated his hit

track, and for whose negligence the defendting the third rail. He asked the foreman ant is liable. if it was all right, and in response the fore- Exceptions overruled. man told him the rail was dead. The plaintiff had no knowledge of the manner of using the power in the third rail or as to the

(192 Mass. 416) switches used for that purpose. He had no

HOFFMAN V. HOFFMAN et al. personal knowledge of whether the power (Supreme Judicial Court of Massachusetts. was on the rail, or off, except that he was

Suffolk. June 21, 1906.) told it was off.

1. WILLS_VALIDITY-FRAUD AND UNDUE INOn these facts we can have no doubt

FLUENCE-EVIDENCE-SUFFICIENCY.

In order to avoid a will on the ground of that the jury were warranted in finding that

fraud and undue influence, it is not necessary the plaintiff was in the exercise of due care; that there should be direct evidence. and that it cannot be said, as matter of law, [Ed. Note.—For cases in point, see vol. 49, that the plaintiff assumed the risk. Nor Cent. Dig. Wills, $ 437.) can we have any doubt that the defendant 2. SAME-BURDEN OF PROOF. was negligent in turning on the power on

Those attacking a will on the ground of

fraud and undue influence have the burden of the north-bound track when the south-bound

proof. track could have been used for the running

[Ed. Note.-For cases in point, see vol. 49, of the working train. The law applicable Cent. Dig. Wills, § 389.] to this subject is well stated by Mr. Justice 3. SAME-EVIDENCE-SUFFICIENCY. Knowlton in Hopkins v. O'Leary, 176 Mass. On an issue as to whether a will was pro258, 264, 57 N. E. 342, as follows: “The cured by fraud and undue influence, evidence

considered, and held sufficient to show that such general duty to provide a place for the plain

was the case. tiff which was reasonably safe, having reference to the kind of business in which the de- Exceptions from Supreme Judicial Court, fendant was engaged, was so far personal to

Suffolk County. himself as a master that he could not escape

Judicial proceedings for the probate of the responsibility by delegating it to another. will of one Hoffman, deceased. On appeal Toy v. United States Cartridge Co., 159 Mass. from the probate court, verdict was rendered 313, 34 N. E. 461. While the plaintiff as- against Effie Hoffman, as executrix, and she sumed the obvious risks of the business, he brings exceptions. Exceptions overruled. did not assume the risk from the failure of Frank H. Stewart, for appellants. Robert the defendant, either personally or through | M. Morse and H. H. Armington, for execua superintendent, to perform the ordinary trix. duties of an employer in providing against unnecessary or concealed dangers in places MORTON, J. Two issues were submitted in which laborers were set to work. The to the jury in this case: (1) “Was the testajury were rightly permitted to pass upon the

tor of sound and disposing mind and memquestion whether the defendant was negli- ory?” and (2) "Was the will procured by gent in this particular. Rogers V. Ludlow

fraud and undue influence on the part of

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